Masliczek v Repatriation Commission

THE NOTICE OF APPEAL 8 It is necessary, because of the jurisdictional issue raised by the Commission, to set out the questions of law and the grounds of appeal contained in Mr Masliczek's notice of appeal. They are: "2. QUESTIONS OF LAW RAISED IN THE APPEAL 1.1 Was the Tribunal wrong in law in the methodology it adopted to ascertain whether the applicant was entitled to have the claimed condition of Post Traumatic Stress Disorder (PTSD) accepted as a war related disease. 1.2 Was the Tribunal wrong in law by applying incorrectly or not at all sections 119, 120(1) and (3), 120A of the Veterans' Entitlements Act 1986 (Cth) and the decision of Deledio v Repatriation Commission? [This is a reference to the decision of the Full Court in Repatriation Commission v Deledio (1998) 83 FCR 82 in which (at 97-98) the Court explained a four step process to be followed by the Tribunal in determining whether the applicant has established a link between his or her operational service and a medical condition which is relied on to support the payment of a pension]. 1.3 Was the Tribunal wrong in law in determining the diagnosis of the condition of post traumatic stress disorder (PTSD) by reference to the statements of principle alone without regard to the expert clinical medical evidence of the psychiatrists who had interviewed the applicant? 1.4 Was the Tribunal wrong in law in failing to apply or to apply correctly all relevant statements of principle for PTSD? 1.5 Was the Tribunal wrong in law in failing to give adequate and proper consideration to the applicant's claim for the condition of osteoarthrosis of the fingers of the right hand in its determination that the right ear hearing problem was covered by the accepted disability of hearing loss of the left ear? 1.6 Was the Tribunal wrong in law by applying Mines v Repatriation Commission which contradicted the High Court Decisions of Bushell v Repatriation Commission, Byrnes v Repatriation Commission andRepatriation Commission v O'Brian; and the full Federal Court Decisions of Repatriation Commission v Whetton and Deledio and Repatriation Commission? 1.7 Was the Tribunal wrong in law by failing to provide adequate and sufficient reasons for its findings on material questions of fact and a reference to the evidence or other material on which those findings were based? 3. GROUNDS OF APPEAL 3.1 The Tribunal was wrong in law in the methodology it adopted in ascertaining whether the Applicant was entitled to have the claimed condition of PTSD as a war related disease. 3.1.1 The Tribunal was required to determine first whether the applicant was suffering from PTSD before proceeding to determine if the disease was war service related. 3.1.2 The Tribunal conflated the two questions depriving the Applicant the benefit of the doubt in ascertaining whether he suffered a stressful event during his service. 3.1.3 The test adopted by the Tribunal throughout was that of the balance of probabilities whereas because of his operational service some of the circumstances surrounding the stressful events had to be given the more generous test of a reasonable hypothesis. 3.2 The Tribunal was wrong in law in the application of, or in the failure to apply sections 119, 120(1), (3), and 120A of the Veterans' Entitlements Act and the decision of Deledio v Repatriation Commission. 3.2.1 These sections and the decision had application to determine the basis of a reasonable hypothesis whether the applicant had experienced a stressful event. The Tribunal erred in law in failing to apply the sections or the authority. 3.2.3 The Tribunal was required by law only to determine that the injuries claimed were not war caused if it was satisfied beyond reasonable doubt that there were no sufficient grounds for making such a claim (s 120(1) to do so it had to raise the test of a reasonable hypothesis based on all the material before it (s 120(3)). This the Tribunal failed to do. 3.2.4 The Tribunal was wrong in law in requiring the applicant to provide objective evidence that he had encountered the bodies of the children whereas the Tribunal was required to determine whether there was a reasonable hypothesis pointed out by the material that he had encountered the bodies. The Tribunal, although rejecting the event as being neither truthful nor accurate, did not challenge it pursuant to the requirements of s 120(1), namely disprove it beyond reasonable doubt. 3.2.5 The Tribunal failed to apply s 120(1) to the circumstances of the applicant's case. 3.2.6 It was insufficient for the Tribunal to note that the circumstances of mortar and rocket fire did not accord with official records and that the events were not mentioned to two psychiatrists and to conclude that these were not traumatic events experienced by the applicant. It was not appropriate for the Tribunal to prefer the accuracy to the old official records of the events in relation to the shooting event. The Tribunal was required to ascertain whether the Applicant had been exposed or confronted with a traumatic event regardless of the position of the body or whether or not he had entered the tent. 3.2.7 The Tribunal appears to confuse between what constituted a traumatic event and whether or not the event took place. The Tribunal conflates these two questions to the detriment of the applicant. 3.3 The Tribunal was wrong in law in determining the diagnosis of the condition of post traumatic stress disorder by reference to the statements of principle rather than the clinical evidence of psychiatrists who had interviewed the applicant. 3.3.1 Post traumatic stress disorder was diagnosed by both the psychiatrists commissioned by the Applicant (Dr Cole and Dr Holwill) and the Repatriation Commission psychiatrists (Dr Walton and Dr Gelb). The Tribunal failed to take into consideration these reports and the evidence given. 3.4 The Tribunal was wrong in law in the application of the statements of principle for post traumatic stress disorder. 3.4.1 The Tribunal was required to determine the most favourable of the Statements of principle instead it used the more onerous. 3.4.2 The Tribunal was wrong in law in the standard of proof it adopted in determining whether the applicant met the requirements of the statements of principle for post traumatic stress disorder. 3.5 The Tribunal was wrong in law in failing to give adequate and proper consideration to the applicants claim for the condition of osteoarthrosis of the fingers of the right hand and in its determination that the right ear hearing problem was covered by the accepted disability of hearing loss of the left ear when there was a loss of hearing to the right side. 3.5.1 The Tribunal failed to provide clear reasons for rejection of osteoarthritis of the fingers of the right hand in which it needed to explain why, pursuant to s 120 of the Act, it was satisfied beyond reasonable doubt that it was not war caused. [The appellant did not press this ground insofar as it dealt with hearing loss]. 3.6 [This ground was not pressed]. 3.7 The Tribunal was wrong in law in failing to provide sufficient and adequate reasons for its decision. 3.7.1 The Tribunal was required to do so pursuant to section 43(2B) of the Administrative Appeals Act."

COMPETENCY OF THE APPEAL 9 The Commission has objected to the competency of the appeal on the ground that no question of law is disclosed in the notice of appeal. 10 Section 44(1) of the AAT Act provides for a right of appeal from the Tribunal "on a question of law". Order 53 r 3(2)(b) of the Federal Court Rules requires the notice of appeal to state "the question or questions of law to be raised on the appeal" 11 In TNT Skypack International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178 Gummow J held that the existence of a question of law was not merely a qualifying condition to ground an appeal under s 44, "but also the subject matter of the appeal itself …" (Emphasis added). 12 It is, therefore, essential, in appeals brought under s 44 of the AAT Act, that a question or questions of law be identified. If the notice of appeal fails to disclose a question of law the necessary subject matter of the appeal is lacking. The Court has repeatedly emphasised the need for pure questions of law to be identified and for them to appear in the notice of appeal in order for the Court to be able to entertain an appeal: see, for example Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524; Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 at 324-325; Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290 at 300-302; Comcare v Etheridge (2006) 149 FCR 522 at 526-527; Commissioner of Taxation v Dixon (2006) 155 FCR 101 at 104-106; Hussain v Minister for Foreign Affairs (2008) 248 ALR 456 at 465-468. In Birdseye Branson and Stone JJ held (at 325) that: "…O 53 r 3(2) discloses an intention that a question of law to be raised on an appeal from the tribunal should be stated with precision as a pure question of law. It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal." (Emphasis added). 13 Each of the "questions of law", which are said to be raised in the present appeal is prefaced by the words "Was the Tribunal wrong in law …" In each case the question was completed at the utmost level of generality. The questions did no more than invite an inquiry into whether the Tribunal had committed some error of law in reaching its decision. As framed these are not questions of law and are not rendered such by resort to a formula of the kind adopted in the prefatory words of each question: see Lambroglou at 527. The additional part of each question is cast at such a level of generality that an answer would not forge a link between the question, the circumstances of the case and the orders being sought by Mr Masliczek. An affirmative answer to question 1.2 would not, for example, necessarily mean that Mr Masliczek was entitled to any relief. An incorrect application of one of the nominated sections may not have any bearing on the adverse outcome of Mr Masliczek's appeal to the Tribunal. It is also unclear whether the question inquires whether all of the sections or any one of them has been incorrectly applied or not applied at all. In any event an affirmative answer would, for practical purposes, be meaningless because of the ambiguous references to a number of legislative provisions and a case and the suggestion that error might have resulted from their incorrect application or a failure to apply them at all. Similarly, an affirmative answer to question 1.4 would not avail Mr Masliczek if, in the circumstances, there was no occasion for the Tribunal to apply any statement of principle relating to PTSD. 14 The Commission recorded its objection to the competency of the proceeding two weeks before the hearing. It also filed and served detailed written submissions in support of its objection. They were not accepted by Mr Masliczek. Instead, he filed written submissions which sought to support the efficacy of the notice of appeal. At the hearing I drew attention to the absence of what I considered to be questions of law. Despite these warnings no application was made by Mr Masliczek to amend his notice of appeal or to frame alternative questions. The result is that the Court does not have before it the essential subject matter of an appeal. There is no question of law on which it can adjudicate under s 44 of the AAT Act. 15 In other cases in which the Court has been confronted with this problem and in which it has determined that it might be possible to frame an appropriate question of law, it has done so itself: see, for example, Birdseye. The time may have come, given the clear statements by the Court about the need for properly framed questions of law, now made over many years, for the Court to strike out purported appeals which do not identify questions of law. I would, nonetheless, be prepared, reluctantly, to attempt to frame questions of law in the present case if I considered that the interests of justice so required. I have concluded that they do not because I do not consider that the Tribunal has made any of the errors attributed to it by Mr Masliczek.

THE APPEAL GROUNDS 16 Grounds 3.1, 3.2, 3.3 and 3.4 deal with the Mr Masliczek's claim insofar as it relies on a diagnosis of PTSD. As already noted the Tribunal found, as a matter of fact, that the traumatic events which Mr Masliczek claimed had given rise to PTSD, either had not occurred or had not occurred in the manner described by him and that they did not give rise to a response of the required intensity. 17 In Mines v Repatriation Commission (2004) 86 ALD 62 Gray J said (at 74) that: "If the question is posed as whether a veteran has suffered PTSD as a result of a traumatic event said to have occurred during the veteran's operational service, it must be answered by saying that the decision-maker must be reasonably satisfied that the traumatic event occurred before reaching the conclusion that the veteran suffered PTSD. Only if such a conclusion is reached does the reasonable hypothesis process of reasoning, outlined in the four steps referred to in Deledio, come into operation." (Emphasis added) See also Fenner v Repatriation Commission [2007] FCA 406 at [63]; Repatriation Commission v Hill [2008] FCA 50 at [104]-[106]. 18 Once the Tribunal had concluded that the traumatic events described by Mr Masliczek had not occurred and that he was not suffering from PTSD there was no occasion for the Tribunal to embark on the four step process which is outlined Deledio in order to determine whether a non-existent medical condition could be linked to operational service. 19 Mr Masliczek submitted that it was not open to the Tribunal, having regard to the specialist medical evidence, to find that he did not suffer from PTSD. This submission must be rejected. Only one psychiatrist gave oral evidence. That was Dr Walton. Dr Walton made a diagnosis of PTSD on the basis of the bodies' event, the shooting event and the firing event as described by Mr Masliczek. He did not consider that the taxi event or the casualty event were stressful in the necessary sense. Drs Holwill, Cole and Gelb, whose reports were before the Tribunal, also diagnosed PTSD principally on the basis of the bodies' event. As the Tribunal found, this event did not occur. The fifth doctor, Dr Kenny, did not diagnose PTSD. The evidence did not, therefore, compel a finding that Mr Masliczek suffered from PTSD. 20 During oral argument counsel for Mr Masliczek sought to argue that the Tribunal had erred in the manner in which it dealt with the general anxiety and the depressive disorders which it found, in paragraph [36], that Mr Masliczek suffered. He argued that the Tribunal's reasons suggested that these conditions had been found not to be service related because Mr Masliczek had fallen at the third of the Deledio steps: he had not experienced a category 1A or a category 1B stressor as defined in Statements of Principles Nos 101 of 2007 and 27 of 2008. It was argued that, in accordance with the Full Court's decision in Repatriation Commission v Keeley (2000) 98 FCR 108 at 123; 131-2, the Tribunal was required to consider whether earlier versions of these instruments, which were in force at the time at which the primary decision on Mr Masliczek's claim was made, might, if applied, have led to a favourable decision. These earlier versions did not contain a requirement that an applicant must have experienced defined stressors during service. The Tribunal had not considered the earlier versions. 21 The Tribunal does not explain why it was that it embarked on a consideration of the general anxiety and depressive disorders from which it found Mr Masliczek to suffer. Counsel for Mr Masliczek (who also appeared for him before the Tribunal) was unable to advise the Court as to whether the Tribunal had been urged to find that Mr Masliczek suffered from these conditions or whether the Tribunal was referred to the Statements of Principles which deal with the conditions. It may be that the Tribunal felt bound to deal with these additional conditions, because of the ruling of the Full Court in Benjamin v Repatriation Commission (2001) 70 ALD 622 at 633 that the Tribunal is required to consider issues raised by the material and evidence before it, even if an applicant does not articulate a case which is or may be supported by that evidence. 22 The difficulty which confronts Mr Masliczek is that there is no question of law or ground of appeal which raises any issue arising from the Tribunal's treatment of the psychiatric conditions identified in paragraph [36]. No application to amend was made. Had it been it was not bound to succeed because counsel for the Commission indicated that, had such issues been raised, it was likely that it would have filed a notice of contention. 23 Grounds 3.5 deals with Mr Masliczek's claim that the osteoarthrosis of the fingers from which he suffers was service related. The Tribunal held that Mr Masliczek did "not satisfy the first step" which was identified in Deledio. 24 In Deledio the Full Court explained the first step as follows (at 97): "1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail." 25 The Tribunal noted that Mr Masliczek had attributed his painful fingers to injuries sustained while playing volleyball in Vietnam. It noted the reports of medical examinations conducted shortly after he was discharged from the Army in 1968. Those reports did not detect any injuries to his hand. The Tribunal also considered Mr Masliczek's evidence. The Tribunal determined that "the material does not point to a hypothesis connecting the condition with the circumstances of the particular service rendered by him." This conclusion was open to the Tribunal. None of the material pointed to the necessary connecting hypothesis. 26 Ground 3.7, as developed in argument, directed attention to the way in which the Tribunal had explained (or failed to explain) its reasons relating to Mr Masliczek's general anxiety and depressive disorders and his osteoarthrosis. 27 Section 43(2B) of the AAT Act requires that the written reasons of the Tribunal "shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based." 28 Although Mr Masliczek made the general submission that the Tribunal had not complied with the obligations under s 43(2B) he did not, in his written submissions, point to any particular omissions in the Tribunal's reasons. In oral argument attention was focussed on paragraphs 36 and 42 of the Tribunal's reasons. 29 Paragraph 36 is relatively short. It dismisses any link between the general anxiety and depressive disorders from which Mr Masliczek suffers and his operational service. Although briefly expressed, the Tribunal's reasons for reaching this conclusion are, in my view, adequate. The paragraph picks up, by reference, the Tribunal's earlier findings that the events on which Mr Masliczek relied either did not occur or did not occur in the manner described by him. Those events falling in the latter category had earlier been found not to have constituted traumatic events. In order for them to fall within the definitions of category 1A or category 1B stressors within the meaning of the relevant Statements of Principles it was necessary for them to be "severe traumatic events". The Tribunal does not go on to explain in detail why it was that the absence of a category 1A or category 1B stressor meant that the necessary links between the conditions and war service were not forged under the relevant Statements of Principles. The Tribunal appears to treat this as being self evident. Although some of the intermediate steps in its reasoning are not exposed, the Tribunal has provided an adequate explanation of why it is that Mr Masliczek has not been able to bring his case within either of the relevant Statements of Principles. This is because the reader is referred to the Statements and is able, by examining them, to appreciate why it is that it is necessary for the defined stressors to be present in order for the links, based on an hypothesis, to be forged. 30 Paragraph 42 of the Tribunal's reasons has already been examined above at [23] to [25]. The Tribunal has adopted some shorthand expressions such as "the first step from Deledio". Nonetheless its reasoning processes, as I have earlier summarised them, are sufficiently clear, in my opinion, to satisfy its obligations under s 43(2B) of the AAT Act.

DISPOSITION 31 The appeal should be dismissed with costs. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice TRACEY.

Associate: Dated: 22 October 2008 Counsel for the Appellant: Mr D De Marchi

Solicitor for the Appellant: De Marchi and Associates

Solicitor for the Respondent: Australian Government Solicitor